Monday, March 11, 2013

Voting Rights in "Wonder Land"

Two posts ago I wrote about the oral arguments before the Supreme Court in Shelby v. Holder, the case challenging the Voting Rights Act, taking issue with the bloated hypocrisies of Antonin Scalia's tortured right-wing jurisprudence. It turns out Dan Henninger, author of the "Wonder Land" column for The Wall St. Journal opinion page, has taken a different view of the matter. Henninger thinks Chief Justice Roberts came to the heart of the matter when he asked Solicitor General Donald Verrilli, "General, is it the government's submission that the citizens in the South are more racist than citizens in the North?" Verrilli hemmed and hawed, finally saying: "I—it's not our submission. As an objective matter, I don't know the answer to that question." Henninger pounced on that bit of dialogue:

Shelby County was one of those moments when one wished the Supreme Court allowed its oral arguments to be televised. Some cases are crucial to the nation's sense of itself, and this is one of them. At its center lies Justice Roberts's blunt question: Is the American South irredeemably racist?

Now, I don't think Henninger wanted this moment televised to explore the "nation's sense of itself" so much as to indulge the Schadenfreude he experienced when he thought Roberts had struck a fatal blow. That, at least, would explain the curious rewriting of the question at the end of the paragraph: "Is the American South irredeemably racist?" That is a different question altogether—one impossible to answer and actually without bearing on the case at all.

The issue Roberts was trying to get at was specifically comparative: if the South were no more racist than the North, then why continue to single out Southern states with the Voting Rights Act? For his part, Verrilli was trying to avoid a gaffe in which he accused a region of being more racist, and instead emphasize that patterns of discriminatory behavior were still widespread. Verrilli knew (as did Roberts) that the charge of racism (aside from being impolitic) was essentially impossible to prove; the patterns of discrimination, however, were easily demonstrated (and that is what the case should be about). After all, Congress had already been through 12,000 pages of testimony when they passed the law that revealed, in the words of Republican Representative James Sensenbrenner, "pervasive discrimination" in the former Confederacy.

Any reference to that evidence never appears in Henninger's column, and for good reason. The purpose of his column is to paint the liberal opinion as an irrational defense of anti-Southern hatred. So he reproduces a question, one that never was actually asked—"Is the South irredeemably racist?—and goes on to describe how the liberal justices responded to his imaginary query:

But the answer to that question, as suggested by the comments of the justices last week, reveals about as much as one needs to know about the enduring political divide between what are known in the U.S. as liberals and conservatives. Or for that matter of a reductionist view of America common in Europe, where I was told by a Brit recently that between the U.S.'s two sophisticated coasts, most people are what is known as "rednecks." One need not travel to Europe to hear this.

Justice Sotomayor to the lawyer representing Shelby County, Ala.: "You may be the wrong party bringing this."

Justice Kagan: "Under any formula that Congress could devise, it would capture Alabama."

Justice Sotomayor: "It's a real record as to what Alabama has done to earn its place on the list."

There we have it. Liberal justices (that is, the female liberal justices—Henninger later takes Breyer to task for imaginary arguments, but concedes he was slightly more logical than the women), like other high brow elitist European types, disdain the South for the "reductionist" reason that they don't like Southern people. And Henninger goes on to plead their case, "[Southerners] stand charged with being the only people in the United States who are potentially racist because they reside in Alabama, Mississippi or Louisiana."

Not quite. Let's be more exact.Southern states stand charged of suffering the burden of federal oversight because of the 12000 pages of testimony about discrimination. Alabama stands charged because, as Justice Elena Kagan said directly preceding her statement that "under any formula Congress could devise, it would capture Alabama":

But think about this State that you're representing, it's about a quarter black, but Alabama has no black statewide elected officials. If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one State on the list. If you factor in unpublished Section 2 suits, Alabama would be the number two State on the list. If you use the number of Section 5 enforcement actions, Alabama would again be the number two State on the list.

Similarly here is Justice Sonia Sotomayor directly preceding her statement that "You may be the wrong party bringing this":

In -- in the period we're talking about, it has many more discriminating – 240 discriminatory voting laws that were blocked by Section 5 objections. There were numerous remedied by Section 2 litigation.

Check out all that evidence. Context can be a real fork in the eye when your argument depends on straw men. It turns out the liberal justices are not concerned with capriciously and viciously slandering the South as racist so much as they WANT TO ENSURE PEOPLE CAN VOTE IN A DEMOCRACY. That is too much for Henninger, though.

If I'm a 40-year-old southerner, born in 1973 and raising a family in one of these states, this view by four justices on the Supreme Court in 2013 of what I might do is insulting and demeaning.

Not likely if you're black. And that's just it... Henninger is speaking for the white South here (this is The Wall St. Journal's own special brand of elitism). He's probably right, I guess, that federal oversight of such states and counties is demeaning on some level or another to the white Republican electorate. But that strikes me as a pretty light burden to bear to make certain African Americans and other historically disenfranchised groups can get to the polls. Henninger, it seems, would rather sacrifice the vote for (largely non-Republican) minorities to keep from insulting (largely Republican) white Southerners. That, or else he'd rather smear the liberal justices with a cheap argument to pander to his readership.

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The Author

An historian, trained as an Americanist with particular focus given to the Civil War, the late 19th century, the South, and race relations. An avid follower of politics, a Democrat with deep faith in progressive causes tempered by sympathy for true conservatism. A teacher and a student.